Citation Nr: 0316878
Decision Date: 07/21/03 Archive Date: 07/31/03
DOCKET NO. 97-10 336A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
The propriety of the initial 10 percent evaluation assigned
for a pulmonary disability.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Neil T. Werner, Counsel
INTRODUCTION
The veteran served on active duty from August 1980 to
November 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1997 decision of the Los
Angeles, California, regional office (RO) of the Department
of Veterans Affairs (VA), which granted service connection
for a pulmonary disability and rated the disability as 10
percent disabling effective from March 15, 1996. The veteran
testified at a hearing before the undersigned in November
1998. In March 2000, the Board remanded the veteran's appeal
for further evidentiary development.
REMAND
The veteran maintains that a higher rating should be assigned
for his pulmonary disability because, as earlier concluded by
the Naval evaluation board, his adverse symptomatology more
nearly approximated the criteria for a higher disability
rating.
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (hereinafter, "VCAA"
or "Act"), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
enacted. This liberalizing law is applicable to the
veteran's claim. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991). The Act and its implementing regulations
(codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a))
essentially eliminates the requirement that a claimant submit
evidence of a well-grounded claim and provide that VA will
assist the claimant in obtaining evidence necessary to
substantiate a claim. 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159(c) (2002).
These law and regulations also include notification
provisions. Specifically, they require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary, that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which, part, if any VA will
attempt to obtain on behalf of the claimant. 38 U.S.C.A.
§ 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002).
While a review of the record on appeal shows that the RO, in
a March 2003 supplemental statement of the case notified the
veteran of the VCAA, this supplemental statement of the case
failed to tell the veteran of who would be responsible for
obtaining evidence. In April 2003, pursuant to the authority
granted by 38 C.F.R. § 19.9(a)(2)(ii) (2002), the Board
provided the veteran with notice of the VCAA, asked the
veteran to provide additional information pertaining to his
treatment for his service connected pulmonary disability, and
notified the veteran of who would be responsible for
obtaining evidence, in order to remedy the RO's failure to
provide the veteran with all of this information.
In the Disabled American Veterans v. Principi, No. 02-7304
(Fed. Cir. May 1, 2003), however, the United States Court of
Appeals for the Federal Circuit invalidated 38 C.F.R. §
19.9(a)(2)(ii) (2002). Thus, despite the Board's efforts to
cure the procedural deficiencies in this appeal, in light of
the Federal Circuit's decision, the case must be remanded
once again. On remand, the RO should undertake all necessary
actions to insure that the veteran is provided adequate
notice as required by 38 U.S.C.A. § 5103(a) (West 2002) and
38 C.F.R. § 3.159(b) (2002). Also see Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
On remand, the RO should undertake any additional action
deemed necessary to ensure that the requirements of the new
law have been satisfied. That action should include, among
other things, obtaining any outstanding evidence identified
by the veteran, such as records held by Dr. Charles or any of
the Los Angles VA medical centers, and, if needed, a VA
examination to obtain contemporaneous medical evidence as to
the current severity of service connected pulmonary
disability. See 38 U.S.C.A. § 5103A (West 2002).
Lastly, the Board observes that the veteran, in a February
1997 letter to the RO, expressed disagreement with the
March 15, 1996, effective date assigned by the RO for the
service connected pulmonary disorder in the January 1997
rating decision. However, a statement of the case addressing
this issue has not been furnished to the veteran. See
38 C.F.R. §§ 19.29, 19.30 (2002). Since the Court has
indicated that referral to the RO of an issue with which the
veteran disagrees does not suffice, see Manlincon v. West,
12 Vet. App. 238 (1999), a remand of this issue is required.
In view of the above, the appeal is REMANDED to the RO for
the following actions:
1. The RO is asked to send the veteran a
letter explaining the VCAA, to include
the duty to assist and notice provisions
contained therein. Among other things,
the letter should explain, what, if any,
information (medical or lay evidence) not
previously provided to the Secretary is
necessary to substantiate the veteran's
claim for a higher evaluation. The
letter should also specifically inform
the veteran of which portion of the
evidence is to be provided by the veteran
and which part, if any, the RO will
attempt to obtain on behalf of the
veteran. See 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b) (2002);
Quartuccio v. Principi, 16 Vet. App. 183
(2002).
2. As part of VA's duty to assist, the
RO should undertake the following
actions:
a. Contact the veteran and request
that he identify by name, address,
and approximate (beginning and
ending) date of all VA and non-VA
health care providers who recently
treated him for his pulmonary
disability.
b. Notify the veteran of the
provisions of 38 C.F.R. § 3.655
(2002) and their effect on his
claim.
c. Contact the veteran and notify
him that his aid in securing these
records, to include providing
authorizations for all private
records, is needed.
d. Obtain all medical records from
each entity the veteran identifies,
including any records on file with
the Los Angles VA medical centers
and Dr. Charles. As to the VA
medical centers, request notes,
discharge summaries, consults,
medications, labs, imaging,
procedures, and problem lists.
e. If any of the requested records
are not available, or if the search
for any such records otherwise
yields negative results, that fact
should clearly be documented in the
claims file, and the veteran and his
representative should be informed in
writing.
3. The veteran should be scheduled for a
new VA examination to obtain medical
opinion evidence as to the current
severity of his service connected a
pulmonary disability under both the old
and new rating criteria which examination
should include a pulmonary function test.
4. To help avoid future remand, the RO
must ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West,
11 Vet. App. 268 (1998).
5. The RO should again readjudicate the
claim and should consider all of the
additional information and/or that has
been associated with the claim's file
since the issuance of the March 2003
supplemental statement of the case. If
the determination remains adverse to the
veteran, he should be furnished a
Supplemental Statement of the Case and be
given an opportunity to respond. The
Supplemental Statement of the Case must
contain notice of all relevant actions
taken, to include all pertinent evidence
received since the March 2003
supplemental statement of the case, and
the applicable law and regulations, both
old and new, governing the claim. If the
veteran should fail to report for the
examination without good cause, the
supplemental statement of the case should
specifically refer to the provisions of
38 C.F.R. § 3.655 (2002) and their effect
on the veteran's claim.
6. As to the claim for an earlier
effective date for the grant of service
connection for a pulmonary disorder, the
RO should furnish the veteran a Statement
of the Case that addresses this issue.
If, and only if, the veteran files a
timely substantive appeal as to this
issue, should it be returned for review
by the Board.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The Board intimates no
opinion as to the ultimate outcome of this appeal.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
LAWRENCE M. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).